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United States v. Bethea

United States Court of Appeals, Seventh Circuit

April 26, 2018

United States of America, Plaintiff-Appellee,
v.
Gregory Bethea, Defendant-Appellant.

          Argued March 29, 2018

          Appeal from the United States District Court for the Western District of Wisconsin. No. 3:17-cr-008 - James D. Peterson, Chief Judge.

          Before Bauer, Flaum, and Manion, Circuit Judges.

          FLAUM, CIRCUIT JUDGE.

         Defendant-appellant Gregory Bethea pleaded guilty to possessing a counterfeit access device in violation of 18 U.S.C. § 1029(a)(1). Due to serious health issues, Bethea appeared via videoconference at his combined guilty plea and sentencing hearing where he was sentenced to twenty-one months' imprisonment. He now argues his sentence should be vacated because Federal Rule of Criminal Procedure 43(a) required him to be physically present during his plea. We agree, and thus reverse and remand for further proceedings.

         I. Background

         In 2014, Bethea used fraudulently obtained credit cards to purchase merchandise at retailers in Wisconsin. A grand jury subsequently indicted him for possessing a counterfeit access device in violation of 18 U.S.C. § 1029(a)(1). Bethea agreed to plead guilty in May 2017.

         On December 1, 2017, the district judge conducted a combined guilty plea and sentencing hearing. The judge presided from his Madison, Wisconsin courtroom, while Bethea appeared via videoconference from Milwaukee because of his health issues and limited mobility.[1] After conducting a plea colloquy, the judge accepted Bethea's guilty plea and moved to sentencing. Although the judge acknowledged Bet hea's health as a complicating factor in imposing a sentence, he remained bothered that Bethea's illegal conduct allegedly continued well after his health issues supposedly worsened. Ultimately, the judge sentenced Bethea to twenty-one months' imprisonment, which fell at the bottom of the Guidelines range of twenty-one to twenty-seven months. Bethea timely appealed, arguing that the district court was not permitted to accept Bethea's guilty plea via videoconference.

         II. Discussion

         We review legal questions, such as whether the use of videoconferencing at a sentencing hearing violates the Federal Rules of Criminal Procedure, de novo. See United States v. Thompson, 599 F.3d 595, 597 (7th Cir. 2010). Bethea argues that his combined guilty plea and sentencing via videoconference violated Federal Rule of Criminal Procedure 43(a) because he was not physically present in the courtroom during his plea. He argues this was an unwaivable obligation, and the court's failure to adhere to the requirement constitutes per se reversible error. Thus, he maintains that even if he consented to the form of proceeding, we must still vacate his plea and sentence.

         Rule 43 of the Federal Rules of Criminal Procedure governs the circumstances under which a criminal defendant must be present in the courtroom. The Rule states that "the defendant must be present at … the initial appearance, the initial arraignment, and the plea." Fed. R. Crim. P. 43(a) (emphasis added). The presence requirement is couched in mandatory language-"the defendant must be present." Id. (emphasis added); see also In re United States, 784 F.2d 1062, 1062-63 (11th Cir. 1986) ("The rule's language is clear; the rule does not establish the right of a defendant to be present, but rather affirmatively requires presence." (emphasis added))[2].

         True, the Rule's presence requirement does contain several exceptions and waiver provisions. See Fed. R. Crim. P. 43(b), (c). These exceptions include, for example, when a proceeding involves the correction or reduction of a sentence, see Fed. R. Crim. P. 43(b)(4), or when the defendant is voluntarily absent during sentencing in a noncapital case after initially attending the trial or plea, see Fed. R. Crim. P. 43(c)(1)(B). But none of these exceptions apply to the situation before us and are generally limited to the sentencing context.[3] Moreover, Rule 43 was amended in 2011 to permit videoconference pleas for misdemeanor offenses. See Fed. R. Crim. P. 43(b)(2) (stating that when the offense "is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant's written consent, the court permits … plea … to occur by video teleconferencing or in the defendant's absence"). That the drafters did not include that option in the felony plea situation is telling.[4]

         No other circuit has addressed whether a defendant can affirmatively consent to a plea by videoconferencing.[5] However, four circuits have addressed whether a district court can require it. All have held that Rule 43 obligates both the defendant and the judge to be physically present; the outcome is the same whether it is the judge or defendant who appeared via videoconference. See United States v. Williams, 641 F.3d 758, 764 (6th Cir. 2011) ("The text of Rule 43 does not allow video conferencing" and the "structure of the Rule does not support it"); United States v. Torres-Palma, 290 F.3d 1244, 1246-48 (10th Cir. 2002) ("[V]ideo conferencing for sentencing is not within the scope of a district court's discretion."); United States v. Lawrence, 248 F.3d 300, 303-05 (4th Cir. 2001); United States v. Navarro, 169 F.3d 228, 238-39 (5th Cir. 1999). We agree with our sister circuits' reasoning and extend it one step further. We thus hold that the plain language of Rule 43 requires all parties to be present for a defendant's plea and that a defendant cannot consent to a plea via videoconference.[6]

         Our decision is supported by the unique benefits of physical presence. As the Sixth Circuit explained, "[b]eing physically present in the same room with another has certain intangible and difficult to articulate effects that are wholly absent when communicating by video conference." Williams, 641 F.3d at 764-65. Likewise, the Fourth Circuit reasoned that "virtual reality is rarely a substitute for actual presence and that, even in an age of advancing technology, watching an ...


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